Citation Nr: 1031642
Decision Date: 08/23/10 Archive Date: 09/01/10
DOCKET NO. 07-11 815 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem,
North Carolina
THE ISSUES
1. Entitlement to an evaluation in excess of 40 percent for
service-connected low back disability.
2. Entitlement to a total disability rating based on individual
unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
J. W. Loeb Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
38 U.S.C.A. § 7107(a)(2) (West 2002).
The Veteran served on active duty from September 1950 to November
1951.
The Veteran appeared at a hearing at the RO before the
undersigned Veterans Law Judge.
In May 2009, the Board of Veterans' Appeals (Board) denied
entitlement to an effective date earlier than August 10, 2005 for
the grant of service connection for neuropathy of the left lower
extremity and denied entitlement to a temporary total disability
evaluation for treatment of a service-connected condition, for
other condition subject to compensation, or for hospitalization
in excess of 21 days; the Board remanded the issue of entitlement
to an evaluation in excess of 40 percent for a back disability to
the Department of Veterans Affairs (VA) Regional Office in
Winston-Salem, North Carolina (RO) for additional development.
As a VA spine evaluation was conducted in August 2009, there has
been substantial compliance with the May 2009 remand.
An October 2009 rating decision granted service connection for
neuropathy of the right lower extremity, with a 20 percent rating
effective March 4, 2009, and granted an increased rating of 20
percent for service-connected neuropathy of the left lower
extremity, effective March 4, 2009.
Based on the medical evidence on file, the Board will address the
issue of TDIU below in accordance with Roberson v. Principi, 251
F.3d 1378, 1384 (Fed. Cir. 2001) (Holding that once a veteran
submits evidence of a medical disability and submits a claim for
an increased disability rating with evidence of unemployability,
VA must consider a claim for a total rating based on individual
unemployability).
FINDINGS OF FACT
1. The evidence does not show unfavorable ankylosis of the
entire thoracolumbar spine or incapacitating episodes having a
total duration of at least six weeks during the past 12 months.
2. The Veteran has completed high school; he retired as an
industrial engineer in 1994.
3. The Veteran's service-connected disabilities are shown to
preclude him from securing or following a substantially gainful
occupation consistent with his educational background and work
history.
CONCLUSIONS OF LAW
1. The criteria for the assignment of an evaluation in excess of
40 percent for service-connected low back disability have not
been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 4.7, 4.71a, Diagnostic Code 5243 (2009).
2. The criteria for the assignment of a TDIU rating have been
met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§
4.7, 3.340, 3.341, 4.16 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Assist and Notify
The Board has considered the Veterans Claims Assistance Act of
2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 and Supp. 2007). The regulations
implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2009).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16
Vet. App. 183 (2002). After having carefully reviewed the record
on appeal, the Board has concluded that the notice requirements
of VCAA have been satisfied.
The notice and assistance provisions of VCAA should be provided
to a claimant prior to any adjudication of the claim. Pelegrini
v. Principi, 18 Vet. App. 112 (2004). A letter was sent to the
Veteran in September 2005, prior to adjudication, which informed
him of the requirements needed to establish entitlement to an
increased evaluation. Although the Veteran was not informed of
the requirements needed to establish entitlement to TDIU, this
lack of notice is not prejudicial as the claim for TDIU is being
granted.
In accordance with the requirements of VCAA, the letter informed
the Veteran what evidence and information he was responsible for
obtaining and the evidence that was considered VA's
responsibility to obtain. Additional private evidence was
subsequently added to the claims files after the letter.
A February 2007 letter provided information concerning effective
dates that could be assigned if his IR claim was granted.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. VCAA also requires VA to
provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d); 38 C.F.R. § 3.159. A VA examination of the back was
conducted in August 2009.
In Bryant v. Shinseki, 23Vet. App. 488 (2010), the United States
Court of Appeals for Veterans Claims (Court) recently held that
38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge
(VLJ) who chairs a hearing fulfill two duties to comply with the
above the regulation. These duties consist of (1) the duty to
fully explain the issues and (2) the duty to suggest the
submission of evidence that may have been overlooked. Here,
during the hearing, the VLJ noted that basis of the prior
determination(s) and noted the element(s) of the claim(s) that
was/were lacking to substantiate the claim(s) for benefits. In
addition, the VLJ sought to identify any pertinent evidence not
currently associated with the claims folder that might have been
overlooked or was outstanding that might substantiate the claim.
Specifically the purpose of the hearing was pointed out, with the
appellate issues of entitlement to increased ratings for the
headache condition and the right hand/wrist condition discussed.
The Veteran was asked to describe the severity of his symptoms
and requested to provide information on treatment he was
receiving for these conditions. Moreover, neither the Veteran
nor his representative has asserted that VA failed to comply with
38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the
conduct of the Board hearing. By contrast, the hearing focused
on the element(s) necessary to substantiate the claim(s) and the
Veteran, through his testimony which elaborated on the frequency
and severity of symptoms for his hand and headache conditions,
demonstrated that he had actual knowledge of the element(s)
necessary to substantiate his claim for benefits. As such, the
Board finds that, consistent with Bryant, the VLJ complied with
the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board
can adjudicate the claim(s) based on the current record.
All available evidence has been obtained and there is sufficient
medical evidence on file on which to make a decision on the
issues decided herein. The Veteran has been given ample
opportunity to present evidence and argument in support of his
claims, including at his March 2009 hearing. All general due
process considerations have been complied with by VA, and the
Veteran has had a
meaningful opportunity to participate in the development of the
claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103
(2007).
Analysis of the Claims
Increased Rating
The Veteran has contended that his service-connected low back
disability is more severe than currently evaluated. Having
carefully considered the claim in light of the record and the
applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claim and the appeal
will be denied.
The Veteran was service connected for low back disability by
rating decision in June 1953 and assigned a 40 percent rating
effective November 10, 1951. A claim for increase was received
by VA in August 2005, which was denied by rating decision in
December 2005. The Veteran timely appealed.
Disability evaluations are determined by the application of VA's
Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4
(2009).
The percentage ratings contained in the Schedule represent, as
far as can be practicably determined, the average impairment in
earning capacity resulting from diseases and injuries incurred or
aggravated during military service and the residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a),
4.1 (2009). Separate diagnostic codes identify the various
disabilities.
In considering the severity of a disability it is essential to
trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2,
4.41 (2009). Consideration of the whole recorded history is
necessary so that a rating may accurately reflect the elements of
disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet.
App. 282 (1991).
Nevertheless, where entitlement to compensation has already been
established and an increase in the disability rating is at issue
the present level of disability is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant
may experience multiple distinct degrees of disability that might
result in different levels of compensation from the time the
increased rating claim was filed until a final decision is made.
Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the
following decision is therefore undertaken with consideration of
the possibility that different ratings may be warranted for
different time periods.
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (2009).
38 C.F.R. § 4.40 notes that disability of the musculoskeletal
system is primarily the inability, due to damage or infection of
parts of the system, to perform the normal working movements of
the body with normal excursion, strength, speed, coordination,
and endurance. Functional loss may be due to the absence of part
or all of the necessary bones, joints, and muscles, or associated
structures, or to deformity, adhesions, defective innervation, or
other pathology, or may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the claimant
undertaking the motion. 38 C.F.R. § 4.40 (2009).
38 C.F.R. § 4.45 provides that factors of disability involving a
joint reside in reductions of its normal excursion of movements
in different planes of motion and therefore, inquiry will be
directed to such considerations as weakened movement (due to
muscle injury, disease or injury of peripheral nerves, divided or
lengthened tendons, etc.); excess fatigability; and
incoordination (impaired ability to execute skilled movements
smoothly). 38 C.F.R. § 4.45 (2009).
The Court has held that when a Diagnostic Code provides for
compensation based upon limitation of motion, the provisions of
38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that
examinations upon which the rating decisions are based must
adequately portray the extent of functional loss due to pain "on
use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206
(1995).
Ankylosis is "immobility and consolidation of a joint due to
disease, injury, or surgical procedure." Colayong v. West, 12
Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL
DICTIONALRY (28TH Ed. 1994) at 86).
Under the current rating criteria involving the general rating
formula for diseases or injuries of the spine, a 100 percent
evaluation is assigned for unfavorable ankylosis of the entire
spine; a 50 percent evaluation is assigned when there is
unfavorable ankylosis of the entire thoracolumbar spine; a 40
percent evaluation is assigned for forward flexion of the
thoracolumbar spine to 30 degrees or less, or with favorable
ankylosis of the thoracolumbar spine; a 20 percent evaluation is
assigned when forward flexion of the thoracolumbar spine is
greater than 30 degrees but not greater than 60 degrees, or the
combined range of motion of the thoracolumbar spine is not
greater than 120 degrees, or with muscle spasm or guarding severe
enough to result in an abnormal gait or abnormal spinal contour
such as scoliosis, reversed lordosis, or abnormal kyphosis; and a
10 percent evaluation is assigned when forward flexion of the
thoracolumbar spine is greater than 60 degrees but not greater
than 85 degrees, or the combined range of motion of the
thoracolumbar spine is greater than 120 degrees but not greater
than 235 degrees, or with muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243
(2009).
The notes to the rating formula for diseases and injuries to the
spine state that any associated objective neurological
abnormalities, including, but not limited to, bowel or bladder
impairment, are to be rated separately, under an appropriate
diagnostic code. 38 C.F.R. § 4.71a, Note (1) (2009). For VA
compensation purposes, normal forward flexion of the
thoracolumbar spine is zero to 90 degrees, extension is zero to
30 degrees, left and right lateral flexion are zero to 30
degrees, and left and right lateral rotation are zero to 30
degrees. The combined range of motion refers to the sum of the
range of forward flexion, extension, left and right lateral
flexion, and left and right rotation. The normal combined range
of motion of the thoracolumbar spine is 240 degrees. The normal
ranges of motion for each component of spinal motion provided in
this note are the maximum that can be used for calculation of the
combined range of motion. Id. at Note (2) (2009). Each range of
motion measurement is rounded to the nearest five degrees. Id.
at Note (4) (2009).
Intervertebral disc syndrome (preoperatively or postoperatively)
may be evaluated either under the General Rating Formula for
Diseases and Injuries of the Spine or under the Formula for
Rating Intervertebral Disc Syndrome Based on Incapacitating
Episodes, whichever method results in the higher evaluation when
all disabilities are combined. See 38 C.F.R. § 4.25 (combined
ratings table) (2009).
The Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes provides that a 10 percent rating is
awarded for incapacitating episodes having a total duration of at
least one week but less than 2 weeks during the past 12 months.
A 20 percent rating is awarded for disability with incapacitating
episodes having a total duration of at least 2 weeks but less
than 4 weeks during the past 12 months. A 40 percent rating is
assigned for incapacitating episodes having a total duration of
at least four weeks, but less than six weeks during the past 12
months. A maximum 60 percent rating is warranted when there are
incapacitating episodes having a total duration of at least six
weeks during the past 12 months. Note 1 provides that for the
purposes of evaluations under Diagnostic Code 5293, an
incapacitating episode is a period of acute signs and symptoms
due to intervertebral disc syndrome that requires bed rest
prescribed by a physician and treatment by a physician. "Chronic
orthopedic and neurological manifestations" means orthopedic and
neurologic signs and symptoms resulting from intervertebral disc
syndrome that are present constantly, or nearly so. 38 C.F.R.
§ 4.71a (2009).
The Veteran complained of VA examination in October 2005 of
severe low back stiffness and pain, aggravated by bending,
lifting, and walking long distances. He had not had any
incapacitating episodes, but he was unable to do any kind of
active sports or daily activity involving bending, lifting, or
long walking. Range of motion included 30 degrees of forward
flexion, 15 degrees of backward extension, lateral flexion of 10
degrees to the right and 15 degrees to the left, and rotation of
15 degrees to the right and 30 degrees to the left. The
diagnosis was multiple status post herniated nucleus pulposus
with diskectomy and fusion of L4-S1 with neuropathy of the left
lower extremity.
The Veteran's spouse said in a March 2006 statement that the
Veteran's back condition has gradually worsened and he was unable
to do any activity that required any extra exertion.
According to March 2007 statements from two people who have known
and worked with the Veteran for many years, the Veteran has
continued to have significant problems with his back even in
retirement.
According to a March 2007 statement from H. G. Winfield, III,
M.D., who had been treating the Veteran for several years, the
Veteran's three previous back surgeries had resulted in severe
spinal stenosis at L3-L4 that is reducing his ability to maintain
a normal lifestyle because of neurogenic claudication and chronic
pain. The Veteran was considered precluded from any gainful
employment or ability to maintain a normal lifestyle.
Treatment reports dated in December 2008 and January 2009 from
Carolina Orthopedic Specialists reveal that the Veteran was very
limited in backward extension of the thoracolumbar spine; he was
able to forward flex and touch his knees. The diagnoses were
late postoperative L4-S1 laminectomy and fusion X3; junctional
syndrome at L3-4 with spinal stenosis; and spondylitic back pain.
A December 2008 CAT scan showed spinal fusion and spinal stenosis
in the low back.
The Veteran testified at his personal hearing in March 2009 that
his low back symptomatology had worsened since his last VA
evaluation in October 2005.
According to a March 2009 statement from Dr. Winfield, the
Veteran had significant spinal stenosis at two segments above his
solid fusion at L4-L5 and L5-S1 with marked limitation of
motion, neurogenic claudication in both lower extremities, absent
ankle jerks, and marked hamstring tightness.
The Veteran complained at an August 2009 VA orthopedic
examination, which included review of the claims files, of
constant pain with radiation to the lower extremities. The pain
was increased by bending, walking more than 75 to 100 yards with
his cane, or standing more than 30 minutes with his cane. He was
helped by lying down. He denied incapacitating episodes. He
denied any effect on his activities of daily living. Range of
motion was from 0 to 10 degrees for all movement except for
bilateral rotation to 15 degrees, with pain at the end range of
motion. Sensation was diminished to light touch throughout both
lower extremities. He walked with a slow gait, taking short
steps. Degenerative joint disease of the lumbar spine was
diagnosed.
The diagnosis on VA neurologic evaluation by the same examiner
who performed the orthopedic evaluation in August 2009 was
bilateral radicular pain. It was concluded that the Veteran's
right radicular pain was secondary to his service-connected low
back disability.
The Board concludes that an evaluation in excess of 40 percent is
not warranted under the rating criteria for the thoracolumbar
spine. The Veteran's 40 percent rating is the maximum rating
assigned for loss of motion of the thoracolumbar spine, which is
assigned when forward flexion of the thoracolumbar spine is to 30
degrees or less. To warrant a higher rating, there would need to
be evidence of unfavorable ankylosis, meaning immobility, of the
entire thoracolumbar spine or incapacitating episodes of at least
six weeks during the previous year, which is not shown in this
case. In fact, it was noted that the Veteran did not have
incapacitating episodes. Consequently, a schedular rating in
excess of 40 percent is not warranted for the service-connected
low back disability.
The Board would also note that the Veteran is currently assigned
separate evaluations for neurological manifestations of the low
back. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 Note (1)
(2009).
Although an increased evaluation can normally be assigned for a
back disability involving loss of motion when there is additional
functional impairment, this is not true when, as in this case,
the Veteran is already assigned the maximum schedular rating for
loss of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997).
Consequently, a higher rating is not warranted for service-
connected low back disability under the provisions of 38 C.F.R.
§§ 4.40, 4.45 (2009). See also Deluca v. Brown, 8 Vet. App. 202
(1995). Because of the Board's action below on the issue of
TDIU, the Board does not need to discuss whether a higher rating
is warranted based on extraschedular consideration under
38 C.F.R. § 3.321(b)(1) (2009).
Although it has been contended that the Veteran should be
assigned a 60 percent rating for his low back disability under
Diagnostic Code 5293, which involves intervertebral disc
syndrome, this diagnostic code was part of the schedular criteria
applicable prior to adoption by VA of new spinal regulations in
September 26, 2003. See 68 Fed. Reg. 51454-51458 (2003).
Because the Veteran did not file his claim for an increased
rating until August 2005, more than one year after the change in
the regulation, only the schedular criteria effective from
September 26, 2003 is applicable to his claim.
The Board has considered the doctrine of reasonable doubt;
however, as the preponderance of the evidence is against the
Veteran's claim for an evaluation in excess of 40 percent for
service-connected low back disability, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
TDIU
VA will grant a total rating for compensation purposes based on
unemployability when the evidence shows that the Veteran is
precluded, by reason of
service-connected disability, from obtaining and maintaining any
form of gainful employment consistent with his education and
occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009).
Under the applicable regulations, benefits based on individual
unemployability are granted only when it is established that the
service-connected disabilities are so severe, standing alone, as
to prevent the retaining of gainful employment.
Under 38 C.F.R. § 4.16, if there is only one such disability, it
must be rated at least 60 percent disabling to qualify for
benefits based on individual unemployability. If there are two
or more such disabilities, there shall be at least one disability
ratable at 40 percent or more, and sufficient additional
disability to bring the combined rating to 70 percent or more.
38 C.F.R. § 4.16(a).
The central inquiry is, "whether the Veteran's service- connected
disabilities alone are of sufficient severity to produce
unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529
(1993).
In determining whether unemployability exists, consideration may
be given to the Veteran's level of education, special training,
and previous work experience, but it may not be given to his age
or to any impairment caused by nonservice-connected disabilities.
38 C.F.R. §§ 3.341, 4.16, 4.19 (2009).
The Board must determine whether the Veteran's service-connected
disabilities prevent him from working at substantially gainful
employment consistent with his work background and education.
The Veteran is currently assigned a 40 percent rating for his
service-connected low back disability, a 20 percent rating for
his service-connected neuropathy of the right lower extremity,
and a 20 percent rating for his service-connected neuropathy of
the left lower extremity. His combined rating is 60 percent,
with a bilateral factor of 3.6 percent for Diagnostic Code 8520.
As the Veteran's service-connected disabilities are all related
to his low back disorder, he meets the percentage standards for
consideration of a TDIU rating.
The Veteran's Defense Department Form 214 reveals that he
completed high school. He said that he retired from work as an
industrial engineer in 1994.
In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court
referred to apparent conflicts in the regulations pertaining to
individual unemployability benefits. Specifically, the Court
indicated there was a need to discuss whether the standard
delineated in the controlling regulations was an "objective" one
based on the average industrial impairment or a "subjective" one
based upon the Veteran's actual industrial impairment.
In a pertinent precedent decision, the VA General Counsel
concluded that the controlling VA regulations generally provide
that veterans who, in light of their individual circumstances,
but without regard to age, are unable to secure and follow a
substantially gainful occupation as the result of service-
connected disability shall be rated totally disabled, without
regard to whether an average person would be rendered
unemployable by the circumstances.
Thus, the criteria include a subjective standard. It was also
determined that "unemployability" is synonymous with inability to
secure and follow a substantially gainful occupation. VAOPGCPREC
75-91.
Consequently, the Board must now determine whether the Veteran's
service-connected disabilities are severe enough to prevent him
from obtaining and maintaining substantially gainful employment.
The Veteran has had three low back surgeries and has significant
limitation of motion of the low back with bilateral radiculopathy
into the lower extremities; he is assigned the maximum rating for
limitation of motion of the thoracolumbar spine. He complained
at his travel board hearing in March 2009 that his low back
disability had worsen over the years, and he had forward flexion,
backward extension, and lateral bending to either side to only 10
degrees in August 2009. Dr. Winfield, who had treated the
Veteran for several years, noted in March 2007 that the Veteran's
low back symptomatology, especially his severe spinal stenosis,
precluded gainful employment.
Based on its review of the facts in this case, the Board finds
that the evidentiary record shows that the Veteran has
significant impairment of both social and industrial adaptability
due to his service-connected disabilities. Consequently, the
Board finds that his service-connected disabilities are shown to
currently preclude him from securing and following substantially
gainful employment. Therefore, TDIU is warranted.
ORDER
A rating in excess of 40 percent for low back disability is
denied.
TDIU is granted subject to the controlling regulations applicable
to the payment of monetary benefits.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs